Legal Advisories

The Legal Advisories page contains the DAEOgrams on substantive ethics issues published by OGE from 1992 to 2010, the Advisory Opinions published by OGE from 1979 to 2010, and the Legal Advisories, which OGE began publishing in 2011.

5 C.F.R. § 2635.803 provides that, when required to do so by agency supplemental regulations, an employee shall obtain prior approval before engaging in an outside activity. This section applies to uncompensated as well as compensated outside activities.

Employee’s may be permitted by their agency to use work hours to complete the SF 450, the information required on the form is targeted at identifying conflicts of interest, and supervisors may review employee SF 450 forms but such information is strictly protected by executive branch principles of confidentiality and the Federal Privacy Act.

OGE responds to suggestions to improve the SF 450 form, such as allowing employees to attach standard brokerage statements in lieu of actual form entries; allowing employees to separately identify assets held by the employee, spouse, and dependent children; using the excepted investment fund (EIF) concept; and using different disclosure forms for special Government employees (SGE).

Excepted investment funds (EIF) allow for reduced disclosure because these funds are widely held, widely diversified or publicly traded, and not self-directed. However, in some circumstances, EIF funds may not be as widely diversified and employees may have knowledge of the fund’s holdings, presenting a potential to violate 18 U.S.C. § 208.

The justifications for the submission of an SF 450 financial disclosure form are to detect potential matters which might be expected to present conflicts between an employee’s private financial interests and official responsibilities and to help employees avoid 18 U.S.C. § 208 violations.

The criminal conflict of interest statute, 18 U.S.C. § 208 is a primary justification for public and confidential financial disclosure requirements. The SF 450 form is limited to matters expected to present conflicts between an employee’s private financial interests and official responsibilities with careful weighing of privacy rights.

Waiver determinations set forth in 18 U.S.C. § 208(d)(1) must be balanced against the nondisclosure mandate of SF 450 information set forth in 5 U.S.C. app. § 107(a)(2). Agencies may withhold from their waiver determinations any portions entitled to exemption from required release pursuant to the Freedom of Information Act (FOIA).

Two recent civil penalty cases brought by the U.S. Department of Justice pursuant to 18 U.S.C. § 216(b) were settled with the defendant in each case making a payment of $5,000 to the United States Treasurer.

The SF 450 form is limited to matters – including disclosure of a spouse’s financial information – which might be expected to present conflicts between an employee’s private financial interests and official responsibilities with careful weighing of privacy rights.

5 C.F.R. §§ 2637.101(c)(8) and 2637.201(e) and CACI., Inc. v. U.S. give weight to an agency’s opinion regarding the application of 18 U.S.C. § 207 to one of its former employees. Formal action is not necessarily required for something to be a "particular matter." Indeed, internal deliberations within an agency may be a "particular matter."

18 U.S.C. § 203 does not restrict a compensation arrangement for former federal employees that is based on the estimated receipts from firm billings for services provided after Government service rather than the actual receivables of the firm (which may include fees for representations made while the partners were still Government employees).

Usually federal compensation creates government employment status; however, commission members are not government employees where the statute establishing the commission states that its members shall not be considered employees. That the members are federally appointed for a term and counsel on policy does not alone create an employment status.

Under 5 C.F.R. §§ 2635.203 and 2635.204, employees of an agency with a facility located next to a State University, may not accept free borrowing privileges at the University libraries, discounts to University events where the rate is not broadly available to all government employees, or discounted shuttle rates below market value.

Under 5 C.F.R § 2634.406(a)(2), eligibility to serve as a fiduciary of a qualified trust is limited to financial institutions, not more than 10 percent of which are owned or controlled by a single individual. The regulation fully conforms to 5 U.S.C. app. §102(f).

No government-wide statute or regulation bars a federal employee from buying into a mutual fund that holds stock in companies doing business with the employee's agency; however, specific agencies may have such rules. 18 U.S.C. § 208(a) bars an employee from acting in a matter having a direct and predictable effect on a company in which he owns stock.

18 U.S.C. § 207(a) prohibits a former government employee from making communications to federal agencies and courts concerning funds to resettle a community when the employee was involved negotiating an related agreement while employed by the government. Section 207(a) does not bar post-employment communications to Congress or legislative staff.

An employee has a "covered relationship" with the employee's private attorney's partner under 5 C.F.R. § 2635.502, but that relationship does not automatically require recusal where the partner is representing a client before the employee's agency.

The Court of Appeals for the D.C. Circuit upholds the district court injunction against the honoraria ban at 5 U.S.C. app. § 501(b). [Note: The honoraria ban was subsequently held unconstitutional by the U.S. Supreme Court in U.S. v. National Treasury Employees Union, 513 U.S. 454 (1995).]

An agency ethics official should look at several factors to determine whether an entity that is related to a corporation (a prohibited source) is a subsidiary controlled by that corporation for purposes of the Standards of Conduct and the fundraising prohibition in 5 C.F.R. § 2635.808(c).

18 U.S.C. § 209 and Crandon v. U.S. do not bar payments from a legal fund on behalf of a Federal employee if persons unconnected to the employee's official duties oversee the fund, the donors' identities remain unknown, the money directly pays the legal fees, the donations are not from prohibited sources, and the employee does not solicit the funds.

Under 18 U.S.C. § 208(a) and 5 C.F.R. part 2635, an executive branch employee is not prohibited from retaining reemployment rights with a former private employer; however, the employee may not participate personally and substantially in a particular matter that would affect that former employer, unless the employee has obtained a statutory waiver.

Fundraising issues covered in this opinion include participating in fundraising as part of one's official duties, complying with the Combined Federal Campaign regulations, and using one's official title.

Fundraising issues covered in this opinion include participating in fundraising as part of one's official duties, complying with the Combined Federal Campaign regulations, and using one's official title.

The OGE said such free attendance at meetings would probably be prohibited by 5 C.F.R. § 2635.202, unless allowed as a widely attended gathering, for which the OGE determined this did not qualify. The OGE determined that a blanket determination that meetings of this time are in the agency's interest was inadequate.

Clinton Administration Ethics Pledge--The Attorney General issues a Statement of Covered Activities describing the activities on behalf of a foreign government or foreign political party that will require registration. [Note: Executive Order 12834 has been revoked.]

18 U.S.C. § 207 doesn't prohibit employee from serving on the board and may fully participate absent an appearance before the government. The OGE also determined that the nonprofit's program is not the same as the agency's program, but the employee should be careful about coordinating between the two.

Questions discussed: (1) if allowing fundraising on official time must be from statute; (2) if fundraising on official time can be done without statutory or regulatory authority; (3) must the determination be by the head of the agency; (4) when allowed to fundraise on behalf of a nonprofit; (5) whether this clause eliminates the need for a waiver.

An employee may receive free admission to attend a widely attended gathering (which must be of mutual interest to a number of parties) of a purely social nature of the agency designee determines the employee's attendance is in the best interest of the agency. Also discussed specific press dinner events.

Individuals appointed to represent a group in an advisory role are not considered federal employees for purposes of the conflict of interest statutes. They are also not required to file financial disclosure forms.

The OGE Director can grant a waiver to 18 U.S.C. § 207(c) restrictions if the restrictions impose undue hardship on the requesting agency, and that granting a waiver would not create the potential for undue influence or unfair advantage. An exemption was never requested of the agency, and is not applied for individuals.

The OGE determined that when a waiver was offered by Agency A to members of an office, and that office was later transferred to Agency B, Agency B had the authority to deny continuation of that waiver.

Discusses rules for divestiture, contemplated sale of asset management company, and states that a divestiture cannot leave the official with a substantive stake in the company which is subject to the future performance of its business affairs, as that would provide an unfair or unintended benefit to the government official.

For purposes of applying the restriction of 18 U.S.C. § 207(c), the fact that the employee holds a position that has been held by persons paid at ES-4 is irrelevant. The critical factor is not the position, but the employee's ES level, i.e., the employee's basic rate of pay.

The OGE stated that since the honoraria ban was statutorily created by Congress, and did not include certain exceptions for teaching, speaking and writing outside of a federal employees official capacity (though many criticized this lack of exception), the employee was required to return an honoraria he received.

Because the group being solicited were not grouped based on their connection to the agency, even though some in the group would individually be considered prohibited sources, this solicitation would not be considered targeted solicitation under 5 C.F.R. § 2635.808. Also discusses free admission to event, and fundraising in official capacity.

The Standards of Conduct (5 C.F.R. part 2635) prohibits executive branch employees from personally using public office for private gain, and may not use federal property for other than authorized activities. Decisions as to exceptions to this rule are within the Department's discretion.

An employee may during the probationary period retain conflicting interests and simply recuse himself from matters involving those conflicting interests, so long as it does not conflict with agency supplementary regulations.

The OGE determined that the reports would not likely run afoul of 18 U.S.C. § 207(b), but that the former federal employee should be careful not to disclose unreleased information he obtained while working for the government.

Discusses how the Ethics Reform Act of 1989 restricted federal employees from receiving certain honoraria for speaking, articles, or appearances, and how the regulations in 5 C.F.R. parts 2635 and 2636 may affect the federal employee and his ability to receive an honoraria.

The EO requires certain appointees to sign an ethics pledge establishing a contractual commitment regarding their activities after they have been employed as "senior appointees" or participated personally and substantially in trade negotiations. Memo discusses details of who must sign, what to sign, when it must be signed, waiver and enforcement provisions. [Note: Executive Order 12834 has been revoked.]

The Clinton Administration ethics pledges will not apply to individuals in career positions, regardless of their pay grade, nor to the non-career personnel of the former G.H.W. Bush Administration who may be asked to stay on after January 1993 for a brief period. [Note: Executive Order 12834 has been revoked.]

The OGE believes an obligation to report "waste, fraud, abuse, and corruption" encompasses an obligation to report a violation of a Federal statute, such as the Computer Security Act of 1987. However they do not interpret the Executive Order provides authority to require a written requirement.